Common Law Crimes

Another theory for such statutes is militia regulation. We are all militia, with a duty to investigate crimes and pursue criminals ("hue and cry"). That can reasonably extend to report crimes to the government or other militiamen.

But that principle applies only to constitutional crimes, not most common law crimes, the prosecution of which, except for impeachment and removal, is not authorized by the Constitution, as was correctly found in U.S. v. Hudson, (1812). All such crimes are violations of the prohibition on ex post facto laws, because the crime is not defined except in the sentencing phase, although that argument was not made in the opinion in that case.

Common law crimes include
  1. perjury
  2. fraud
  3. contumacy
  4. failure to file returns and pay taxes
  5. private interference in interstate commerce
  6. murder
  7. assault
  8. rape
  9. robbery
  10. smuggling, except as a civil offense
  11. conspiracy

The only common law crimes over which Congress was granted authority to prosecute were treason, piracy, felony on the high seas, and offenses against the law of nations (which includes regulation of immigration). It was not granted authority to pass laws to prosecute for sedition.

Criminal penalties for violations of civil regulations are not authorized by the Constitution.

So 18 U.S.C 1001, which prosecutes for a false statement made to a "government investigator", based on conflict with statements made by other persons on the same subject, is unconstitutional.

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